Opinion
July, 1915.
Present — Ingraham, P.J., Clarke, Scott, Dowling and Hotchkiss, JJ.
An order of interpleader, in a case like the present, is expressly provided for by section 820 of the Code of Civil Procedure. There is no merit in the contention that the respondent storage company should be retained as a defendant in order that plaintiff may assert a claim against it for damages for the detention of the chattels, because, although plaintiff demands damages, there is no allegation of any damages in his complaint. (See Code Civ. Proc. § 1722.) We think, however, that the chattels should not be delivered to either claimant without proper security that the chattels or their value will be returned to the other claimant if he should be successful in establishing his claim thereto. The order appealed from must, therefore, be modified by requiring Julius Cahn, before the chattels are delivered to him, to give security, to be approved as to form and amount by a justice of the Supreme Court upon two days' notice to the plaintiff or his attorney, for a return of the chattels or their value to the plaintiff in case he shall establish his right to the possession thereof.
Order modified as directed in opinion. Order to be settled on notice.